Birts v. Mott

Full title: RUBY ELIZABETH BIRTS, Trustee of the Birts 1978 Family Trust, Plaintiff…

Court: United States District Court, W.D. Texas, San Antonio Division

Date published: Jun 13, 2006

Civil Action No. SA-03-CA-1127-XR (W.D. Tex. Jun. 13, 2006)

Opinion

Civil Action No. SA-03-CA-1127-XR.

June 13, 2006

ORDER

XAVIER RODRIGUEZ, District Judge

On this date, the Court considered Plaintiff's request for default judgment against Defendants, Robert H. Mott and Kyle R. Mott.¹ After careful consideration, the Court GRANTS the motion (docket no. 74).

1 On February 21, 2006, Plaintiff also requested leave to file proof of damages. See docket no. 74-2. Plaintiff filed a submission of proof of damages on March 3, 2006. See docket no. 77.

I. Procedural Background

Plaintiff filed her Complaint in the above numbered and styled cause on November 11, 2003. Service was executed on Robert H. Mott and Kyle R. Mott by personal service on June 5, 2004 and August 15, 2004, respectively. See docket nos. 10 19. Defendant Kyle R. Mott did not timely answer or otherwise respond, and has not answered, responded, or otherwise appeared as of this date. Defendant Robert H. Mott did not timely answer, but did file a motion to quash his deposition notice.² See docket no. 44. On October 14, 2005, the Court denied Robert H. Mott's motion to quash. See docket no. 46.

2 Defendant Robert H. Mott's counsel, Nicole Charlebois and Stanley Hatch, also filed applications to appear pro hac vice, which the Court granted on November 28, 2005. See docket no. 53.

Plaintiff moved for entry of default on February 21, 2006, and the Clerk entered default against both Robert H. Mott and Kyle R. Mott on March 27, 2006. See docket nos. 74, 78, 79. Pursuant to Federal Rule of Civil Procedure 55, Plaintiff now moves for default judgment.

II. Analysis

Plaintiff brought this case alleging Robert H. Mott and Kyle R. Mott, among others, breached certain guaranty agreements given to secure rental payments and lease obligations pursuant to the terms of a commercial lease agreement. Plaintiff alleges that on or about December 28, 2000, Motzoli's Foods, Inc. ("Motzoli's") signed a 20-year commercial lease (the "Lease") with NovaSource Development, L.C. ("NovaSource") to operate a restaurant on the NovaSource-owned premises. Subsequently, NovaSource and Motzoli's allegedly entered into three separate amendments to the lease. Plaintiff further alleged that Robert H. Mott, Robert L. Levenson,³ Bob L. Turner,⁴ Pasta Ventures, Inc.,⁵ Kyle R. Mott and Troy L. Mott⁶ each gave their individual and/or corporate guarantee to NovaSource guaranteeing the full, prompt, and complete payment by Motzoli's of all terms and obligations, including the payment of rent and property taxes.⁷ Plaintiff alleges that Robert Mott gave his personal guarantee for 50% of the Guaranteed Obligations for a period of seven (7) years from the "commencement date"⁸ of the lease. Kyle Mott allegedly gave his personal guarantee for 50% of the Guaranteed Obligations for a period of four (4) years beginning at the end of the 7^th year following the commencement date. In December 2002, Plaintiff purchased the property from NovaSource, assuming all rights and responsibilities under the Lease. Following Motzoli's default in August 2003, Plaintiff sought to enforce the guaranty agreements. Defendants' default concedes the truth of the allegations of the Complaint as to Defendants' liability, but not damages. Jackson v. FIE Corp., 302 F.3d 515, 521, 524-25 (5th Cir. 2002). Plaintiff seeks monetary damages, attorney's fees, and costs.

3 On February 6, 2006, the Court granted Levenson's motion for summary judgment. See docket no. 73.

4 Plaintiff voluntarily dismissed its claims against Bob L. Turner. See Order dated Dec. 15, 2005, docket no. 61.

5 On June 18, 2004, this Court entered an Order dismissing Motzoli's and Pasta Ventures, Inc. pursuant to Plaintiff's request. See docket no. 15.

6 Plaintiff voluntarily dismissed its claims against Troy L. Mott. See Order dated February 22, 2006, docket no. 76.

7 Plaintiff also alleged that Robert Levenson, Bob L. Turner, Pasta Ventures, Inc., and Troy L. Mott gave individual and/or corporate guarantees to NovaSource.

8 The Lease Agreement defines "Commencement Date" as:

[T]he date upon which Tenant opens for business of the date upon which a Certificate of Occupency is issued by the City of San Antonio or other appropriate governmental agency or body, whichever occurs first.

Lease Agreement, ¶ 1.1.5. Plaintiff alleges the lease "commenced" on November 21, 2001. Allen C. Birts Aff., at ¶ 5.

Federal Rule of Civil Procedure 54(c) states that "a judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment. Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in the party's pleadings." FED. R. CIV. P. 54(c). As a general rule, damages will not be awarded without a hearing or a demonstration by detailed affidavits establishing the necessary facts. United Artists Corp. v. Freeman, 605 F.2d 854, 857 (5^th Cir. 1979). When the amount of damages and/or costs can be determined with certainty by reference to the pleadings and supporting documents and when a hearing would not be beneficial, a hearing is unnecessary. James v. Frame, 6 F.3d 307, 310 (5^th Cir. 1993). Plaintiff alleges that the amount of damages is liquidated and sum certain, thus no hearing is required.

Plaintiff requests the entry of default judgment against Defendant Robert H. Mott in the amount of $235,097.50 ($186,662.50 for rental payments due from August 2003 through October 2008 plus $48,435.00 for 2003, 2004, and first part of 2005 property taxes) as 50% of his total guaranteed obligation and Defendant Kyle R. Mott in the amount of $111,135.00 ($62,700 for rental payments due from November 2008 through October 2012 plus $48,435.00 for 2003, 2004, and first part of 2005 property taxes) as 50% of his total guaranteed obligation, plus attorney's fees, costs, expenses, and post-judgment interest. Although the Court finds that Defendants have admitted liability as alleged in the Complaint and default judgment is proper, there is insufficient evidence to support Plaintiff's requested award of damages against Robert H. Mott for the first part of 2005 property taxes and against Kyle R. Mott for any property taxes. Plaintiff's provided Bexar County, Texas property tax statements for 2003 and 2004, but not 2005. Plaintiff's 2003 and 2004 property tax liability totaled $84,104.61. Defendants alleged liability for 50% of the property taxes equals $42,052.31. While Defendant Robert H. Mott is clearly liable for the 2003 and 2004 property taxes, Plaintiff has failed to establish the alleged "joint and several liability" of Defendant Kyle R. Mott. Defendant Kyle R. Mott only agreed to guarantee the payment and performance of "all of the terms, obligations, and covenants of said Lease to be paid, kept, or performed by Tenant . . . for the four (4) year period beginning at the end of the seventh (7^th) year following the `Commencement Date' as defined in the Lease . . . The Guaranteed Obligations, do not include any terms, obligations, or covenants accruing under the Lease prior to the 7^th Lease Year or after the 11^th Lease Year as defined in the Lease." Lease Guaranty of Kyle R. Mott. Because the 2003, 2004, and 2005 property tax obligations accrued before the end of the 7^th Lease Year, Kyle R. Mott was not liable for those payments. The Court finds Defendant Robert H. Mott is liable to Plaintiff for $228,714.81 ($186,662.50 for rental payments due from August 2003 through October 2008 plus $42,052.31 for 2003 and 2004 property taxes) in monetary damages plus post-judgment interest and Defendant Kyle R. Mott is liable to Plaintiff for $62,700.00 (50% of rental payments due from November 2008 through October 2012) in monetary damages plus post-judgment interest. The Court further finds that Defendants Robert H. Mott and Kyle R. Mott are joint and severally liable for Plaintiff's attorney's fees⁹ and costs of court.

9 In their Lease Guaranty agreements, Defendants agreed to pay all attorney's fees and costs of courts "incurred by [Plaintiff] in enforcing the obligations of Tenant under said Lease."

III. Conclusion

For the reasons herein, Plaintiff's Motion for Default Judgment is GRANTED (docket nos. 74-1 and 74-2). The Court awards Plaintiff Ruby Elizabeth Birts, trustee of the Birts 1978 Family Trust, a default judgment for damages against Defendants Robert H. Mott and Kyle R. Mott. The Court ORDERS Plaintiff to submit its requested attorney's fees and costs of court no later than June 27, 2006. Pursuant to Federal Rule of Civil Procedure 58, the Court will enter judgment on a separate document.